Sierra Club v. Mainella

• Decision Date: 25 October 2006
• Docket Number: Civil Action No. 04-2012 (JDB).
• Citation: 459 F.Supp.2d 76
• Parties: SIERRA CLUB, et al., Plaintiffs, v. Fran MAINELLA, Director of the National Park Service, et al., Defendants.
• Court: U.S. District Court — District of Columbia

459 F.Supp.2d 76

SIERRA CLUB, et al., Plaintiffs, v. Fran MAINELLA, Director of the National Park Service, et al., Defendants.

Civil Action No. 04-2012 (JDB).

United States District Court, District of Columbia.

October 25, 2006.

COPYRIGHT MATERIAL OMITTED

Eric Robert Glitzenstein, Howard M. Crystal, Tanya Sanerib, Meyer Glitzenstein & Crystal, Washington, DC, for Plaintiff's.

Lauren Beth Fischer, U.S. Department of Justice, Washington, DC, for Defendants.

MEMORANDUM OPINION

BATES, District Judge.

The National Park Service ("NPS") regulates private oil and gas drilling operations within units of the National Park System pursuant to the National Park Service Organic Act ("Organic Act"), 16 U.S.C. § 1, et seq., and the regulations set forth at 36 C.F.R. Part 9, Subpart B ("9B Regulations"). Directional drilling — the practice of drilling at a slant adjacent to and outside of Park boundaries to extract privately owned oil and gas from beneath the park unit surface — is also covered by the 9B regulations, but may be exempt from NPS oversight pursuant to 36 C.F.R. § 9.32(e) where a regional director determines that the operations within a park unit pose no significant threat of damage to park resources. Plaintiff's challenge the framework for this decisionmaking, as embodied in three site-specific final actions exempting directional drilling activities in and around Big Thicket National Preserve in Texas, alleging that NPS failed to consider environmental impacts from oil and gas operators' surface activities adjacent to and outside park boundaries in violation of the Organic Act, 16 U.S.C. § 1, the Administrative Procedure Act ("APA"), 5 U.S.C. § 553, and the National Environmental Policy Act ("NEPA"), 42 U.S.C. §§ 4321-4370e.¹ Currently pending before the Court are plaintiff's' and defendants' cross-motions for summary judgment. A hearing on the motions was held on September 8, 2006.

Neither the parties nor the Court are writing on a blank slate. The Court previously addressed plaintiff's' standing and the meaning of section 9.32(e) in the context of plaintiff's APA challenge to an NPS guidance document issued in 2003 that allegedly changed a prior NPS interpretation of section 9.32(e). See Sierra Club v. Mainella, No. 04-2012, 2005 WL 3276264 (D.D.C. Sept.1, 2005) ("Sierra Club I"). The Court concluded that the plain language of section 9.32(e) limits the impacts NPS may consider to those from activities within a park unit, and thus the restatement of that requirement in the later guidance document was not a final agency action subject to judicial review. Id. at *11-12. That decision expressed no opinion on the merits of either the regulation or the three site-specific exemption decisions made by NPS under the Organic Act or NEPA.² Plaintiff's now argue that NPS's application of section 9.32(e) has resulted in exemption decisions that are contrary to the Organic Act and violate the procedural requirements of NEPA. Defendants once again challenge plaintiff's' standing, and also defend the framework of decisionmaking and the merits of each of the three challenged decisions.

BACKGROUND

I. Statutory and Regulatory Background

The National Park Service Organic Act of 1916 provides for NPS management of the national park system, and establishes a mandate to regulate the use of parks in a manner that will protect park resources from impairment:

The service ... shall promote and regulate the use of the ... national parks ... by such means and measures as conform to the fundamental purpose of the said parks ... which purpose is to conserve the scenery and the natural and historic objects and the wild life therein and to provide for the enjoyment of the same in such manner and by such means as will leave them unimpaired for the enjoyment of future generations.

16 U.S.C. § 1. This mandate is confirmed by the NPS General Authorities Act of 1970, as amended, 16 U.S.C. § 1a-1, and also is reflected in the legislation establishing the individual parks, including Big Thicket National Preserve. See 16 U.S.C. § 1a-1 ("The authorization of activities shall be construed, and the protection, management, and administration of these areas shall be conducted in light of the high public value and integrity of the National Park System and shall not be exercised in derogation of the values and purposes for which these various areas have been established," except as otherwise provided by Congress); 16 U.S.C. § 698c(a) ("Such lands [i.e., Big Thicket National Preserve] shall be administered by the Secretary as a unit of the National Park System in a manner which will assure their natural and ecological integrity in perpetuity in accordance with ... the provisions of ... sections 1 and 2 to 4 of this title"). NPS has construed the "derogation" standard in the General Authorities Act as a reiteration of the "impairment" standard set forth in the Organic Act — that is, a duty to prohibit the impairment of the integrity of park resources and values.³ See NPS Management Policies 2001 at 12 (Pls.' Mem., Ex. 1).

The NPS promulgated the 9B Regulations in 1978 to control activities within the National Park System with respect to the exercise of rights to oil and gas owned by private entities where access is on, across, or through federally owned or controlled land or waters. See 36 C.F.R. § 9.30(a). Such rights arise most frequently where the land within a park unit is owned in fee by a private party, including the right to oil and gas, or, most relevant here, "[w]hen in a transfer of the surface estate to the United States, the grantor reserved the rights to the oil and gas." Id. The regulations generally prohibit the granting of access through federal lands or waters unless the operator has an approved "plan of operations," which "serves as the operator's access permit" and sets forth information regarding, inter alia, the various "environments to be affected by operations" and "steps to be taken ... to mitigate any adverse environmental effects." Id. §§ 9.32(a), 9.36(a)(16). Operators subject to the 9B Regulations also must take "all technologically feasible precautions" to prevent a well from blowing open or becoming wild and to prevent accidents and fires. Id. §§ 9.44, 9.46. Any operator outside the boundaries of a park unit must comply with these requirements if he is using directional drilling techniques that result in the drill hole crossing into the unit and passing under any federal land or water. Id. § 9.32(e). However, an exemption is available where "the Regional Director is able to determine from available data, that such operations pose no significant threat of damage to park resources, both surface and subsurface, resulting from surface subsidence, fracture of geological formations with resultant fresh water acquirer contamination, or natural gas escape, or the like." Id.

NPS issued a guidance document in 2003 that states, in relevant part: "The potential impacts considered in the § 9.32(e) exemption process relate only to effects on park resources from downhole activities occurring within the boundary of the park, not threats to park resources associated with the operation outside park boundaries." See Final Guidance on Implementing the Directional Drilling Provision of the Service's Nonfederal Oil and Gas Regulations at 36 CFR 9B ("Guidance") at 2 (emphasis added) (Defs.' Mot. to Dismiss, Ex. 4A-4B). In Sierra Club I, the Court concluded that the Guidance only repeated the requirements of the regulation, and thus did not require notice and comment. 2005 WL 3276264 at * 12, * 16 (holding that the Guidance reiteration of regulatory requirements "does not give rise to new legal obligations or legal consequences," that the Guidance is "a statement of the plain meaning of the 9B regulations," and thus the Guidance "is not final agency action requiring notice and public comment or subject to judicial review"). This holding was based primarily on the geographical limitation imposed on the key term "operations" as defined by the 9B Regulations — that is, limiting "operations" to "[a]ll functions, work and activities within a unit in connection with exploration for and development of oil and gas resources" — a limitation repeated in other parts of the 9B regulations. Sierra Club I, 2005 WL 3276264 at *10 (quoting 36 C.F.R. § 9.31(c)) (emphasis added). As this Court explained:

Reading § 9.32(e) with the definition of "operations" substituted in place of that term in brackets, § 9.32(e) provides for an exemption where "the Regional Director is able to determine from available data, that such [functions, work and activities within a unit in connection with exploration for and development of oil and gas resources, the right to which is not owned by the United States, including ... all activities and uses reasonably incident thereto performed within a unit] pose no significant threat of damage to park resources ..."

Sierra Club I, 2005 WL 3276264 at *11.

The NPS, like other federal agencies, also is subject to the procedural requirements of the National Environmental Policy Act. NEPA requires a federal agency to prepare an environmental impact statement ("EIS") for all "proposals for ... major Federal actions significantly affecting the quality of the human environment." 42 U.S.C. § 4332(2)(C). The EIS must include, among other things, "a detailed statement describing the-reasonably foreseeable environmental impact both of the proposed federal action and of any feasible alternative(s) to the proposed federal action." Wyoming Outdoor Council v. U.S. Forest Service, 165 F.3d 43, 49 (D.C.Cir.1999) (internal quotations omitted). An EIS is not required if the agency makes a determination based on a more limited document, an "environmental assessment" ("EA") that the proposed action would not have a significant impact on the environment. 40 C.F.R. §§ 1501.4, 1508.13. "The EA is to be a `concise public document' that `[b]riefly...